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Friday, September 30, 2011

CMS Announced Status Update and Future Changes

As part of the Centers for Medicare & Medicaid Service (CMS) efforts to continuously improve its Medicare Secondary Payer (MSP) program; CMS has posted the following information to the MSP websites:

1) An ALERT delaying the Medicare, Medicaid, and SCHIP Extension Act of 2007 (MMSEA) Section 111 MSP reporting requirement for certain liability insurance (including self-insurance) settlements, judgments, awards, or other payments is now posted at

2) Policy guidance related to Exposure, Ingestion, and Implantation issues, and December 5, 1980, is now posted at and

3) An ALERT related to Qualified Settlement Funds, under Section 468B of the Internal Revenue Code, is now posted at

4) A policy memorandum, for liability insurance (including self-insurance), on the acceptance of the treating physician's certification, and its impact on the issue of protecting Medicare's interests with respect to future medicals is now posted at

In addition, on September 30, 2011, the MSPRC will implement a self-service information feature to its customer service line. This feature gives callers the ability to get the most up-to-date Demand/Conditional Payment amounts, and the dates that those letters were issued, without having to speak to a customer service representative. The self-service feature will be available for extended hours, and callers will have the option of requesting information on multiple cases during one phone call.

Beginning in October 2011, CMS will implement an option to pay a fixed percentage of certain physical trauma-based liability cases with settlement amounts of $5000 or less. Detailed information on this option will be posted as an ALERT, on or before October 21, 2011, on the MSPRC website at

Upcoming improvements to the MSP program, expected within the next 3-9 months, include the following:

• The implementation of a MSPRC portal, where the beneficiary/representative can obtain information about Medicare's claim payments, demand letters, etc., and input information related to a settlement, disputed claims, etc.

• The implementation of an option that allows for an immediate payment to Medicare for future medical costs that are claimed/released/effectively released in a settlement.

• The implementation of a process that provides Medicare's conditional payment amount, prior to settlement in certain situations.

How To Determine If A Substance Causes Cancer at Work

The National Institute for Occupational Safety and Health (NIOSH) is seeking public input to determine what substances cause cancer and at what level of occupational exposure.

"The National Institute for Occupational Safety and Health (NIOSH) of the Centers for Disease Control and Prevention (CDC) intends to review its approach to classifying carcinogens and establishing recommended exposure limits (RELs) for occupational exposures to hazards associated with cancer. As part of this effort, NIOSH is requesting initial input on these issues (including answers to the 5 questions in the following section), to be submitted to the NIOSH Docket number 240, for a comment period lasting through September 22, 2011. This information will be taken under consideration and used to inform NIOSH efforts to assess and document its carcinogen policy and REL policy regarding occupational hazards associated with cancer. NIOSH has also created a new NIOSH Cancer and REL Policy Web Topic Page [see] to provide additional details about this effort and progress updates."

"NIOSH is announcing a Request for Information on key issues identified and associated with the NIOSH Carcinogen and REL policies. Special emphasis will be placed on consideration of technical and scientific issues with the current NIOSH Cancer and REL Policies that require further examination including the following:Show citation box

(1) Should there explicitly be a carcinogen policy as opposed to a broader policy on toxicant identification and classification (e.g.carcinogens, reproductive hazards, neurotoxic agents)?Show citation box

(2) What evidence should form the basis for determining that substances are carcinogens? How should these criteria correspond to nomenclature and categorizations (e.g., known, reasonably anticipated,etc.)?Show citation box

(3) Should 1 in 1,000 working lifetime risk (for persons occupationally exposed) be the target level for a recommended exposure limit (REL) for carcinogens or should lower targets be considered?Show citation box

(4) In establishing NIOSH RELs, how should the phrase “to the extent feasible” (defined in the 1995 NIOSH Recommended Exposure Limit Policy) be interpreted and applied?Show citation box

(5) In the absence of data, what uncertainties or assumptions areappropriate for use in the development of RELs? What is the utility of a standard ”action level” (i.e., an exposure limit set below the REL typically used to trigger risk management actions) and how should it be set? How should NIOSH address worker exposure to complex mixtures?

Public Comment Period: Comments must be received by September 22, 2011.

The concept of a compensable industrial disease has developed only recently and its acceptance has lagged far behind that of industrial accidents. The original Workers' Compensation Acts, as promulgated from the year 1911 forward by many of the states, did not provide for the recognition of occupational illness and disease as compensable events. As demands have been placed upon the medical system to treat and to prevent occupational illness, the legal system, under social, economic, and political pressure, has sought to provide a remedy for the thousands of injured workers who have suffered and who are continuing to suffer from occupational illness and disease. 

Sunday, September 25, 2011

SeaWorld killer whale attacks expose incomplete incident reporting

Guest Blog By Edgar Romano*

This week a trial began in Florida between SeaWorld theme parks and the Occupational Safety and Health Administration(OSHA). The trial is over several citations and a fine stemming from incidents in which killer whales (also known as orcas) killed or injured trainers at SeaWorld water parks. Most recently, on February 24, 2010, a giant killer whale named Tilikum gruesomely killed trainer Dawn Brancheau by grabbing her ponytail and pulling her under the water in front of a horrified audience.

In August of 2011, SeaWorld was fined $75,000 by OSHA for three safety violations, including one in connection with Brancheau’s death. The agency’s investigation “revealed that SeaWorld trainers had an extensive history of unexpected and potentially dangerous incidents involving killer whales at its various facilities,” the OSHA statement said.

Prior to Brancheau’s death, California OSHA had issued a citation against SeaWorld, coming to the conclusion that if procedures at the parks didn’t change, eventually somebody was going to die. SeaWorld used political lobbying to have the citation withdrawn. Just a few years later Dawn Brancheau was killed.

In yesterday’s hearing, OSHA asserted that, although SeaWorld does walk each trainer through all recorded dangerous incidents between whales and humans (98 incidents since 1988), there are many dangerous incidents that just don’t make it into the incident reports.

This brings up an important point that all employers would be smart to take note of: without comprehensive reporting, working conditions will remain unsafe.

EDGAR ROMANO received his undergraduate degree cum laude from Brandeis University and his Juris Doctorate from The John Marshall Law School. He is a Senior Partner in the Workers' Compensation Department and has been with the firm since 1995. Mr. Romano is actively engaged in litigating workers compensation claims including those claims arising out of occupational exposure to asbestos and industrial irritants. He has lectured extensively to labor unions and medical providers. Mr. Romano isPresident of the Workers Injury Law and Advocacy Group and is on the Board of Directors of the New York State Workers' Compensation Bar Association. He is a member of the Leader's Forum of the American Association of Justice and Vice-President of the Workers' Compensation Section. He is a member of theNew York State Bar Association, the New York State Trial Lawyers Association, the Jewish Lawyer's Guild, and NYCOSH. Mr. Romano serves on the Advisory Committee of the World Trade Center Medical Monitoring Program at Mt. Sinai Hospital. He is listed in "Who's Who in American Law"..
Mr. Edgar Romano was selected as one of the "Workers' Compensation Notable People for 2008".  He blogs regularly atWorkers' Law Watch where this posted appeared originally on September 23, 2011.

Friday, September 23, 2011

Bad Cases Make Bad Law

Guest Blog by Thomas M. Domer  

The Illinois legislature just passed a law in response to a notorious claim in which a Sheriff Deputy, driving more than 100 miles per hour while using his cell phone, crossed a median and slammed into a car, killing two teenage sisters.

The claim drew regional and national attention and ultimately resulted in a revision in Illinois’ workers' compensation claims that would prevent any State employee hurt at work from being eligible for workers' compensation if the injury happened during a forcible felony, an aggravated DUI, or reckless homicide, if any of those crimes killed or injured another person.

The law is much more restrictive than the initial media summaries blaring “State law bars State employees injured while committing crimes from receiving worker’s comp.”

This is another example of bad cases creating bad law. The Sheriff filed a workers' compensation claim for his injuries but an arbitrator concluded that his high speed and cell phone use was a “substantial and unjustifiable risk resulting in gross deviation” barring his claim. The Illinois legislature reacted to the media and public outcry.

In other states, notably Wisconsin, an advisory council meets annually to deal with such perceived excesses, and to change the law accordingly.

A few years ago I represented a worker who, despite his employer’s offer to re-employ him with his disability, chose instead to obtain vocational rehabilitation, which was ordered by a judge and the Commission. His claim seemed to run afoul of the express purpose of worker’s compensation in Wisconsin and other states, which is to restore the injured worker to a job.

After the case was reported, the employer and insurance carrier representatives on Wisconsin’s Advisory Council recommended (appropriately) this perceived loophole be closed, and the new law barred the employer’s liability for vocational rehabilitation benefits if the employer offered a job to the injured worker which was refused.

Since the early days of workers' compensation in Wisconsin the courts have liberally construed “in the course of employment.” Absent evidence of abandonment of employment, it is presumed employment continues, except if a deviation can be proved.

Poor judgment or negligence is not synonymous with deviation and an employee must willfully abandon job duties to be excluded. If an employee is injured while engaging in an activity and disobedience of an order of the employer solely for the employee’s own benefit, workers' compensation benefits will be denied. However, if the disobedient actions were in furtherance of the employer’s interest rather than the employee’s, compensation is granted.

As one workers' compensation veteran judge has noted, “even bad employees get compensation.” The no-fault nature of workers' compensation sometimes produces hard-to-swallow results.

Thomas M. Domer practices in Milwaukee, Wisconsin ( He has authored and edited several publications including the legal treatise Wisconsin Workers' Compensation Law (West) and he is the Editor of the national publication, Workers' First Watch. Tom is past chair of the Workers' Compensation Section of the American Association for Justice. He is a charter Fellow in the College of Workers' Compensation Lawyers. He co-authors the nationally recognized Wisconsin Workers' Compensation Experts.

Wednesday, September 21, 2011

World Trade Center dust and 9/11 first responders with cancer, time for U.S. Government to stop withholding benefits

Guest Blog By Edgar Romano*

Many courageous first responders, who saved lives at Ground Zero, have since been diagnosed with cancer, and yet the U.S. government does not pay for their treatment. This Saturday, September 10, CNN will air Terror In The Dust, an investigation by chief medical correspondent Dr. Sanjay Gupta into the consequences of the deadly dust produced by the World Trade Center’s collapse. Gupta speaks with 9/11 heroes and medical experts about the consequences of the carcinogen-filled dust.

A new study released earlier this week by the New York City Fire Department provides good evidence of a link between 9/11 first responders and cancer. The study showed a 32% greater incidence of cancer among firefighters who worked at Ground Zero than those who did not.

"The NIOSH study concluded that the 9/11 debris did contain known carcinogens."

The U.S. government does not pay for cancer treatments of 9/11 first responders. This is because the administrators of the James Zadroga 9/11 Health and Compensation Act made a determination not to cover cancer, based on a study by the National Institute for Occupational Safety and Health (NIOSH). The NIOSH study, published in July 2011 concluded that while the 9/11 debris did contain known carcinogens, first responders were not exposed to dangerous levels. The New York City Fire Department study provides new evidence that, hopefully, will cause lawmakers to reevaluate their decision.

"It took 25 years to draw that connection between asbestos and mesothelioma, and in that time a lot of people died who might otherwise have been screened, treated, and might otherwise have been saved."

In an interview yesterday with John Stewart, a long-time supporter of the first responders and their cause, Dr. Gupta noted that “It took 25 years to draw the connection between asbestos and mesothelioma” and in that 25-year period, many people died without proper care or screening.

Dr. Gupta expressed hope that the Zadroga bill administrators would immediately acknowledge the newly released scientific evidence and give the go-ahead to compensate first responders who have since been diagnosed with cancer. Dr. Gupta also stated that if the link between the World Trade Center’s dust and cancer were officially acknowledged by the Zadroga bill administrators, early screenings for other responders could be authorized, potentially saving lives.

Representatives Charles Rangel, Carolyn Maloney, Jerrold Nadler, Peter King, and Steve Israel have filed a petition with the Zadroga bill Program Administrator that will require him to consider within 60 days whether or not to add coverage for cancers under the Zadroga Act. NIOSH does not plan to release a follow up study until July 2012.

We all owe a debt of gratitude to these first responders. We encourage everyone out there to watch Terror In The Dust, Dr. Gupta’s documentary on environmental hazards at Ground Zero, on September 10, 9:00 p.m. ET.

EDGAR ROMANO received his undergraduate degree cum laude from Brandeis University and his Juris Doctorate from The John Marshall Law School. He is a Senior Partner in the Workers' Compensation Department and has been with the firm since 1995. Mr. Romano is actively engaged in litigating workers compensation claims including those claims arising out of occupational exposure to asbestos and industrial irritants. He has lectured extensively to labor unions and medical providers. Mr. Romano isPresident of the Workers Injury Law and Advocacy Group and is on the Board of Directors of the New York State Workers' Compensation Bar Association. He is a member of the Leader's Forum of the American Association of Justice and Vice-President of the Workers' Compensation Section. He is a member of theNew York State Bar Association, the New York State Trial Lawyers Association, the Jewish Lawyer's Guild, and NYCOSH. Mr. Romano serves on the Advisory Committee of the World Trade Center Medical Monitoring Program at Mt. Sinai Hospital. He is listed in "Who's Who in American Law"..
Mr. Edgar Romano was selected as one of the "Workers' Compensation Notable People for 2008". These selections are made by the LexisNexis Workers' Compensation Law Center, who state that "These exceptional people have worked tirelessly on behalf of their clients and others and have made significant contributions to the workers' compensation system and/or the workplace". For the complete story go to LexisNexis Workers' Compensation. He blogs regularly at Workers' Law Watch where this posted appeared originally on September 8, 2011.

Work Comp Premiums Linked to Stock Market Swings and Not Claims

While it was the intent of the crafters of workers' compensation legislation to past the costs of workers' compensation claims along to the consumer, a new study reveals that work comp rates are actually associated with the swings of the stock market. A report released by the University of California’s UC Davis Center for Healthcare Policy Research reveals the starling finding based on a recent analysis that while accidents and injuries have decreased for the past two decades rates have only risen.

The study, of what it calls "skyrocketing rates" yielding higher premiums,  reveals  that higher premiums are instead associated with decreases in the Dow Jones Industrial Average and interest rates on U.S. Treasury bonds.

"Insurance companies appear to have been setting premiums according to their returns on the stock and bond markets, not according to the number of claims they have," said J. Paul Leigh, UC Davis professor of public health sciences and senior author of the study. "They invest because they need a financial cushion to pay for claims and, if they lose, raise premiums to recoup their losses."

The analysis of trends was an essential part of the report and was provided so that policy makers would have information available to understand why why regulations should be enacted to protect workers. In 2009 California workers sustained between 3 and 4 million occupational injuries amounting to a cost to employers of $74 billion.

In conducting the study, Leigh and UC Davis postdoctoral scholar Abhinav Bhushan examined U.S. Bureau of Labor Statistics data on incidence rates for injuries and illnesses, along with data from the National Academy of Social Insurance on workers' compensation costs (to employers) and benefits (to workers and medical providers) from 1973 through 2007. Beginning in 1992, the Bureau of Labor Statistics began identifying cases involving more than 30 days away from work, providing the study team with the opportunity to evaluate the impact of more severe work-related injuries and illnesses on premiums. That information was compared with Dow Jones Industrial Average indices and Treasury bond interest rates.

The researchers found that while premiums increased from 1992-2007, claims decreased 1 to 2 percent each year. Claims for serious illnesses and injuries varied, but decreased overall.

The team also discovered that for the entire 35-year timeframe of the study, rising premium rates were closely linked with the Dow Jones Industrial Average or Treasury bonds. As either the Dow or interest rates on Treasury bonds fell, premiums rose, and vice versa.

"The association of premiums with the stock market and Treasury bonds was consistent and strong," said Leigh. "Increasing premiums had nothing to do with the number of injured workers, who often are incorrectly blamed for increasing premiums for employers."

The study also explored the decline in workers' compensation claims over the last two decades. This trend is often linked with the establishment of the Occupational Safety and Health Administration, created by Congress to ensure safe working conditions nationwide. The agency, however, was established in 1970, and the downward trend in claims was not evident until 1993.

Leigh suspects the decline may be related to the transition of some high-injury jobs, such as construction and janitorial services, from large companies to smaller companies, where employees may not belong to unions and could be more fearful of losing their jobs if they complain of work-related injuries or illnesses. According to Leigh, small companies are also less likely to keep complete records, so injuries are recorded and reported less often.

"Insurance commissioners and legislators who regulate premium increases should pay greater attention to trends in claims rather than to insurance companies' returns on investments in allowing premium increases," Leigh said. "More effort should also be directed toward policing contractors and smaller businesses to assure they aren't circumventing workers' compensation laws."

Workers compensation has dramatically changed since its enactment a century ago. The system should not be an economic engine to sustain Industry and the cottage industries that evolved. The policymakers need to focus on maintaining the intent of the original crafters, which was to equally balance the costs upon both  labor and Industry so that the costs of the program could be passed along to the consumer. Workers compensation is best served if the system is an economic engine for  a safer work environment rather than a monument to a failed manufacturing economy.

For over 4 decades the Law Offices of Jon L. Gelman  1.973.696.7900 have been representing injured workers and their families who have suffered occupational accidents and illnesses.

Tuesday, September 20, 2011

US CDC Publishes Safety Nanotechnology Guidance

Citing concern over the occupational risks that potentially exist in nanotechnology, the US CDC has issued a safety guidance manual for the nanotechnology.

"Research has shown that materials on this small scale begin to exhibit physical, chemical, and biological behaviors that are quite unique. These unique properties raise concerns about the health impacts of nanotechnology, particularly among workers employed in nanotechnology-related industries."


U.S. National Nanotechnology Initiative. size of the nanoscale [ Web Site Icon].
U.S. National Nanotechnology Initiative. Nanotechnology and you, benefits and applications. [ Web Site Icon]. 
NIOSH [2010]. Nanotechnology Overview[]. 
International Organization for Standardization [2008]. ISO Standard 12885:2008 Nanotechnologies-Health and safety practices in occupational settings relevant to nanotechnologies.
Dahm MM, Yencken MS, Schubauer-Berigan, MK [in press]. Exposure control strategies in the carbonaceous nanomaterial industry. Journal of Occupational and Environmental 53(6S).
Roco M, Mirkin C, Hersam M [2010]. Nanotechnology research directions for societal needs in 2020: retrospective and outlook. Boston and Berlin: Springer. [ Web Site Icon].
NIOSH [2009]. Approaches to safe nanotechnology: managing the health and safety concerns associated with engineered nanomaterials. Cincinnati, OH: U.S. Department of Health and Human Services, Centers for Disease Control and Prevention, National Institute for Occupational Safety and Health, DHHS (NIOSH) Publication Number 2009-125. [].

Asbestos Victims in Libby Settle Case for $43 Million

The asbestos victims in Libby, Montana, have  settled their case against the State of Montana for $43 Million. The case alleged that Montana had failed to take proper action to curb the asbestos production at the WR Grace vermiculite plant.

Asbestos is a known carcinogen causally related to asbestosis, lung cancer and mesothelioma. WR Grace manufactured asbestos containing vermiculite as an insulation product. The production process contributed to the toxic contamination of the geographical area and both the workers and the residents developed asbestos related illness on a massive scale. The US Environmental Protection Agency designated Libby, MT, as a Superfund Site for cleanup and remediation.

Additionally, the Obama health care reform legislation, extended universal medical care  (Libby Care) through Medicare to all residents of Libby who were exposed to fiber. This innovated medical insurance program can be extended to other areas designated as a national health emergency areas. Eventually all occupational disease claims in workers' compensation could be encompassed by the program.

The costs for medical benefits extended to the residents of Libby will be reimbursed through the Medical Secondary Acts as directed by The Centers for Medicare and Medicaid Services. This concept is already in place throughout the US. 

For over 4 decades the Law Offices of Jon L. Gelman  1.973.696.7900 have been representing injured workers and their families who have suffered occupational accidents and illnesses.

Monday, September 19, 2011

US Dept of Labor Moves Aggressively on Misclassification of Employees

The misclassification of workers by employers directly impacts the calculation of workers' compensation benefits. The US Department of Labor today has moved aggressively to co-ordinate actives with the US IRS to co-ordinate enforcement and education.

Generally, employees classified as independent contrators are not entitled to workers' compensation benefits Employers sometime commit fraud and designate employees as independent contractors and avoid paying both taxes and benefits such as workers' compensation.

11 state agency leaders also sign, agree to memorandums of understanding

Secretary of Labor Hilda L. Solis today hosted a ceremony at U.S. Department of Labor headquarters in Washington to sign a memorandum of understanding with the Internal Revenue Service that will improve departmental efforts to end the business practice of misclassifying employees in order to avoid providing employment protections. In addition, labor commissioners and other agency leaders representing seven states signed memorandums of understanding with the department's Wage and Hour Division and, in some cases, its Employee Benefits Security Administration, Occupational Safety and Health Administration, Office of Federal Contract Compliance Programs and Office of the Solicitor. The signatory states are Connecticut, Maryland, Massachusetts, Minnesota, Missouri, Utah and Washington. Secretary Solis also announced agreements for the Wage and Hour Division to enter into memorandums of understanding with the state labor agencies of Hawaii, Illinois and Montana, as well as with New York's attorney general.

The memorandums of understanding will enable the U.S. Department of Labor to share information and coordinate law enforcement with the IRS and participating states in order to level the playing field for law-abiding employers and ensure that employees receive the protections to which they are entitled under federal and state law.

"We're here today to sign a series of agreements that together send a coordinated message: We're standing united to end the practice of misclassifying employees," said Secretary Solis. "We are taking important steps toward making sure that the American dream is still available for all employees and responsible employers alike."

"This agreement takes the partnership between the IRS and Department of Labor to a new level," said IRS Commissioner Doug Shulman. "In this new phase of our relationship, we will work together more efficiently to address worker misclassification issues, and better serve the needs of small businesses and employees."

Business models that attempt to change, obscure or eliminate the employment relationship are not inherently illegal, unless they are used to evade compliance with federal labor laws — for example, if an employee is misclassified as an independent contractor and subsequently denied rights and benefits to which he or she is entitled under the law. In addition, misclassification can create economic pressure for law-abiding business owners.

These memorandums of understanding arose as part of the department's Misclassification Initiative, which was launched under the auspices of Vice President Biden's Middle Class Task Force with the goal of preventing, detecting and remedying employee misclassification.

For over 3 decades the Law Offices of Jon L. Gelman  1.973.696.7900 have been representing injured workers and their families who have suffered occupational accidents and illnesses.

Related articles

Wednesday, September 14, 2011

Truck Crash That Kills 11 Results in Call For A National Cellphone Ban

Citing distraction from the use of a mobile phone by the driver of an 18-wheel semi truck as the probable cause of a crash that killed 11 people, the National Transportation Safety Board recommended banning the use of mobile phones by commercial drivers except in emergencies. Accidents arising from the use of cell phone are resulting major liability & workers' compensation problems for employers.

"Distracted driving is becoming increasingly prevalent, exacerbating the danger we encounter daily on our roadways," said NTSB Chairman Deborah A.P. Hersman. "It can be especially lethal when the distracted driver is at the wheel of a vehicle that weighs 40 tons and travels at highway speeds."

On March 26, 2010, at about 5:14 a.m. CDT, near Munfordville, Kentucky, a truck-tractor semitrailer combination unit driven by a 45-year-old male departed the left lane of southbound Interstate 65, crossed a 60-foot-wide median, struck and overrode a cable barrier system, entered the northbound travel lanes, and struck a 15-passenger van, driven by a 41-year-old male and occupied by 11 passengers (eight adults, two small children, and an infant). The truck driver and 10 of the 12 occupants of the van were killed.

Investigators determined that the driver used his mobile phone for calls and text messages a total of 69 times while driving in the 24-hour period prior to the accident. The driver made four calls in the minutes leading up to the crash, making the last call at 5:14 a.m. CDT, coinciding with the time that the truck departed the highway.

The Safety Board also determined that the median barrier system, which had recently been installed following another cross-median fatal accident on the same section of I-65, contributed to the severity of the accident because it was not designed to redirect or contain a vehicle of the accident truck's size. Because median crossover accidents involving large vehicles are so deadly, the NTSB made recommendations regarding the use of appropriately designed median barriers on roadways with high volumes of commercial vehicles.

At the meeting today, the NTSB issued 15 new safety recommendations to the Federal Highway Administration (FHWA), the Federal Motor Carrier Safety Administration (FMCSA), the National Highway Traffic Safety Administration (NHTSA), the American Association of State Highway and Transportation Officials (AASHTO), the Governors Highway Safety Association (GHSA), all 50 states, and the District of Columbia. The Safety Board also reiterated two previously issued recommendations to the FMCSA.

A synopsis of the NTSB report, including the probable cause, findings, and a complete list of all the safety recommendations, is available on the NTSB's website. The NTSB's full report will be available on the website in several weeks.


Board meeting announcement (9/8/11)

Investigative update (5/14/10)

Launch of investigative team to accident site (3/26/10)

The Top 10 Drugs Prescribed For Workers Compensation Claims

A recent study by NCCI Holdings, Inc. reports the top 10 most popular drugs prescribed for workers' compensation claims.
  4. LYRICA® 
Workers compensation medical costs per claim average more than $6,000 and soar to nearly $25,000 for lost-time claims. The report examined workers compensation prescription drug (Rx) use, a medical expense that makes up 19% of all workers compensation (WC) medical costs.

    Other key findings of the report were:
    • The indicated Rx share of total medical is 19%; this is slightly higher than the estimate given in the 2010 update
    • OxyContin® climbs from the number 3 WC drug in Service Year 2008 to number 1 in Service Year 2009 
    • Hydrocodone-Acetaminophen drops from the top WC drug in Service Year 2008 to number 3 in Service Year 2009 
    • Recent overall cost increases are driven more by utilization increases than by price increases 
    • Physician dispensing continues to increase in Service Year 2009 in almost every state 
    • Increased physician dispensing is associated with increased drug costs per claim 
    • Per-claim Rx costs vary significantly by state
    For over 3 decades the Law Offices of Jon L. Gelman  1.973.696.7900 have been representing injured workers and their families who have suffered occupational accidents and illnesses.

    Tuesday, September 13, 2011

    Acetone Explosion Results in $917,000 OSHA Fine for Bostik Inc.

    US Labor Department’s OSHA cites 50 safety violations, proposes $917,000 in fines against Bostik Inc. following Middleton, Mass., explosion

    The U.S. Department of Labor's Occupational Safety and Health Administration has cited Bostik Inc. for 50 alleged violations of workplace safety standards following a March 13 explosion at the company's Middleton plant in which four workers were injured. The adhesives manufacturer faces a total of $917,000 in proposed fines.

    OSHA's inspection identified several serious deficiencies in the company's process safety management program, a detailed set of requirements and procedures employers must follow to proactively address hazards associated with processes and equipment that involve large amounts of hazardous chemicals. In this case, the chemical was acetone, used in a PSM-covered process known as direct solvation. On the day of the explosion, a valve on a transfer line inadvertently was left open, resulting in the release of flammable acetone vapors. The vapors exploded after being ignited by an undetermined source.

    "The requirements of OSHA's PSM standard are stringent and comprehensive because the stakes are so high," said Assistant Secretary of Labor for OSHA Dr. David Michaels. "Failure to evaluate, anticipate, address and prevent hazardous conditions associated with a process can result in a catastrophic incident such as an explosion."

    "In this case, Bostik knew from prior third party and internal compliance audits conducted at the plant that aspects of its PSM program were incomplete or inadequate, and misclassified electrical equipment was in use. The company did not take adequate steps to address those conditions," said Jeffrey A. Erskine, OSHA's area director for northeastern Massachusetts. "Luckily, the explosion happened when there were few workers in the plant. Otherwise, this incident could have resulted in a catastrophic loss of life."

    Specifically, OSHA found that the process safety information for the solvation process was incomplete. The employer's analysis of hazards related to the process did not address previous incidents with a potential for catastrophic results, such as forklifts that struck process equipment, and did not address human factors such as operator error, communication between shift changes and employee fatigue from excessive overtime. In addition, the company did not ensure that a forklift and electrical equipment, such as a light fixture, switches and a motor, were approved for use in Class 1 hazardous locations where flammable gases or vapors are present.

    As a result, OSHA has issued Bostik nine willful citations, with $630,000 in proposed fines, for these conditions. A willful violation is one committed with intentional knowing or voluntary disregard for the law's requirements, or with plain indifference to worker safety and health.

    Bostik Inc. also has been issued 41 serious citations, with $287,000 in fines, for a range of other conditions, including an incomplete and deficient emergency response plan, inadequate training for employees required to fight fires, obstructed exit access and electrical hazards, and additional PSM deficiencies. A serious violation occurs when there is substantial probability that death or serious physical harm could result from a hazard about which the employer knew or should have known.

    Bostik Inc. has 15 business days from receipt of its citations and proposed penalties to comply, meet with OSHA's area director or contest the findings before the independent Occupational Safety and Health Review Commission. The investigation was conducted by OSHA's Andover Area Office; telephone 978-837-4460.

    To report workplace incidents, fatalities or situations posing imminent danger to workers, call OSHA's toll-free hotline at 800-321-OSHA (6742).

    Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA's role is to ensure these conditions for America's working men and women by setting and enforcing standards, and providing training, education and assistance. For more information, visit

    Monday, September 12, 2011

    Workers Compensation Do It Yourselfers Get Help

    Workers Compensation claims can be complicated and difficult so some states offer assistance to those who want to handle their own cases. Minnesota is the latest in a series of jurisdictions to offer assistance to both injured workers and employers.

    The Department of Labor and Industry (DLI) has established a new Office of Workers' Compensation Ombudsman to provide advice and assistance to employees and small businesses.

    "Our goal is to help injured workers and small businesses who are having problems navigating the workers' compensation system," said Ken Peterson, DLI commissioner. "The ombudsman will complement the other services provided by our agency's Safety and Workers' Compensation Division and will be an additional resource for parties who need in-depth help in resolving problems they encounter in the workers' compensation system."

    Various stakeholders have long sought an ombudsman function to help injured workers who are often at a disadvantage because they know very little about how the sometimes complex benefit entitlement system works in workers' compensation. In February 2009, after studying DLI's oversight of workers' compensation, the Minnesota Office of the Legislative Auditor issued a report that encouraged the establishment of an ombudsman function to "help those injured workers who are overwhelmed with the workers' compensation process."

    The ombudsman assists injured workers by:
    • providing advice and information to help them protect their rights and to pursue a claim;
    • contacting claims adjusters and other parties to help resolve disputes;
    • assisting in preparing for settlement negotiations or mediation; and
    • making appropriate referrals to other agencies or entities when further resources are needed.

    The ombudsman assists small businesses by:
    • providing information regarding what to do when an employee reports an injury;
    • directing them to appropriate resources for assistance in obtaining and resolving issues regarding workers' compensation insurance; and
    • responding to questions pertaining to employers' responsibilities under Minnesota's workers' compensation law.
    Hopefully more states will recognize that their to assist employees and employers in what has become a very complicated process. The Minnesotta effort will go along way to relieve stress and anxiety for everyone involved in the process.

    For over 3 decades the Law Offices of Jon L. Gelman  1.973.696.7900 have been representing injured workers and their families who have suffered occupational accidents and illnesses.